SC allows Adani Power's appeal, sets aside Gujarat HC order over levy of customs duty

New Delhi, Jan 5 (PTI) The Supreme Court on Monday set aside the Gujarat High Court's 2019 verdict which had declined to grant relief to Adani Power Limited over levy of customs duty on electrical energy generated in its power plant located in an SEZ and supplied to the domestic tariff area (DTA).

A bench of Justices Aravind Kumar and N V Anjaria noted that the high court in July 2015 had struck down the levy of customs duty on electrical energy cleared by the firm from its SEZ unit into the DTA from June 26, 2009 to September 15, 2010.

It said the apex court had in November 2015 declined to interfere with the high court's 2015 verdict.

"Accordingly, we hold that once the 2015 judgment had declared the levy to be ultra vires and this court had declined interference, it was incumbent upon the administrative authorities to conform their conduct to that declaration," the bench said.

It further said, "Judicial pronouncements are not advisory opinions; they are binding commands of law." The bench said that when the executive continues to enforce, under a new guise, a levy that has been judicially struck down, it acts in defiance of constitutional discipline and erodes public confidence in the rule of law.

"Finality of adjudication is an essential component of good governance. The repetition of an invalidated levy through successive notifications compels needless litigation, burdens the courts and subjects citizens to prolonged uncertainty," it said.

The top court said the authorities were obliged to treat the matter as concluded and ought to have extended the benefit of the 2015 decision uniformly to all subsequent periods until the law was altered by legislative action.

The apex court delivered its verdict on an appeal by Adani Power Ltd and others challenging the June 28, 2019 verdict of the high court.

It said the high court's division bench in 2019, being a co-ordinate bench, was bound either to follow the 2015 decision or, if it doubted its correctness or applicability, ought to have referred the question to a larger bench.

"We declare that the levy of customs duty on electrical energy cleared by the appellant (Adani Power Ltd) from its SEZ unit to the DTA during the relevant period... was without authority of law," the bench said.

It said the Centre and the jurisdictional customs authorities shall, after due verification, refund to the firm such amount that has been deposited in cash or through encashment of security or otherwise under protest by the company towards customs duty on the clearance of electrical energy from SEZ unit into the DTA from September 16, 2010 to February 15, 2016.

While allowing the appeal, the bench said the high court's June 2019 verdict cannot be sustained.

"It is further directed that no further demand shall be enforced against the appellant in respect of customs duty on electrical energy cleared from its SEZ unit to the DTA for the period covered in this appeal, as the levy having been held unsustainable," it said.

The bench further said, "For the avoidance of doubt, we clarify that we express no opinion as to any future legislative regime that Parliament may enact. Our findings are confined to the aforesaid period and statutory framework arising in the present appeal." It noted that the appellant operates a coal-based thermal power plant of about 5,200 MW capacity within the Mundra Special Economic Zone (SEZ) in Gujarat. PTI ABA ABA KSS KSS